Africa’s Sub-regional Courts, Infrastructure Development and Sustainability: Insight from the Serengeti Decision by Uche Ewelukwa Ofodile*

Introduction

On 20 June 2014, the East African Court of Justice (hereinafter “EACJ” or “the Court”) issued a decision barring the United Republic of Tanzania (hereinafter “Tanzania”) from constructing and maintaining a road known as the “Natta-Mugumu – Tabora B-Kleins Gate – Loliondo Road” (hereinafter, “the Road” or “the Superhighway”) across the northern wilderness of the Serengeti National Park (hereinafter “the Serengeti”). In The Animal Network for Animal Welfare v. The Attorney General of the United Republic of Tanzania (“Serengeti Decision”), the Court ruled that where Tanzania fails in its obligations under the East African Community (EAC) Treaty to conserve and protect the environment, the Court can properly make declarations in that regard. “We are … convinced that if the road project is implemented as originally planned, the effects would be devastating both for the Serengeti and neighbouring Parks … and it behoves us to do the right thing and stop future degradation without taking away the Respondent’s mandate towards economic development of its people,” the Court boldly asserted. The Serengeti Decision is remarkable for at least four reasons.[1] First, it suggests that the EACJ is open for business and is not afraid to render decisions that EAC Member States may disagree with. Second, it confirms the broad mandate of the Court – a mandate broad enough to permit the Court to halt actions of Member States that violate even those provisions of the EAC Treaty that are yet to be fully operationalized and broad enough to permit the Court to accept and rule on claims alleging violation of international and regional instruments that are outside the EAC framework. Third, the decision suggests that in the EAC region, socio-economic goals can no longer be pursued to the detriment of the environment. Fourth, the decision suggests that increasingly, sub-regional courts in Africa are playing an important role in the continent – that of addressing the justice-gap in the continent. Although sub-regional courts cannot replace domestic courts in Africa, they appear to be giving hope to individuals and communities in Africa that find the path to justice in domestic courts to be costly, dangerous, or extremely challenging. Most important, they appear to be shaping understanding about responsible investment and sustainable development in Africa. This, arguably, is a development that merits the attention of foreign investors and development banks operating in Africa. As part of their due diligence investigation, investors and international financial institutions operating in Africa would be advised to: (i) be aware of the existence of sub-regional courts in Africa; (ii) take into account relevant prior decisions from these courts; and (iii) recognize the growing tendency of these courts to hold African States bound by the human rights and environmental treaties that they ratify.

The Applicant’s Case

In the instant case, the Applicant (the African Network for Animal Welfare a non-profit organization based in Kenya) argued that the plan to upgrade, tarmac, pave, realign, construct, create and/or commission the Road would have deleterious environmental and ecological effects, would cause irreparable and irreversible damage to the ecosystem of the Serengeti and adjoining national parks, and violated several provisions of the EAC Treaty including Articles 5(3)(c), 8(1)(c) and 111(2) and 114(1)(a) of the Treaty.[2] Article 5(3)(c) stipulates that the EAC shall ensure “the promotion of sustainable utilization of the natural resources of the Partner States and the taking of measures that would effectively protect the natural environment of the Partner States.” Article 8 (1) (c) stipulates that EAC Partner States “shall: … (c) co-ordinate through the institution of the Community, their economic and other policies to the extent necessary to achieve the objectives of the Community.” Article 111(2) provides that the action by the Community relating to the environment shall have as one of its objectives: “To preserve, protect and enhance the quality of the environment.” Article 114(1) requires Member States to inter alia “take necessary measures to conserve their natural resources;” and “co-operate in the management of their natural resources for the conservation of the eco-systems and the arrest of environmental degradation.” The Applicant also alleged violation of some regional and international instruments that are outside the EAC framework including: the 2003 African Convention on the Conservation of Nature and Natural Resources, the Rio Declaration on Environment and Development, the Declaration of the United Nations Conference on the Human Environment (the Stockholm Declaration) and the United Nations Convention on Biodiversity. The Applicant sought inter alia: (i) a declaration that the action to construct the Road is unlawful and violates several provisions of the EAC Treaty and (ii) a permanent injunction restraining Tanzania from maintaining any road or highway across any part of the Serengeti National Park.

Tanzania’s Response

Tanzanian advanced three preliminary objections based on points of law. First, Tanzania argued that the case was untenable in law as it sought to enforce a part of the EAC Treaty (Chapter Nineteen) that was unenforceable because it had not yet been fully operationalized. Second, Tanzania argued that the Applicant lacked locus standi to bring an action alleging violation of international and regional conventions and declarations that are outside the EAC framework. Finally, and related to the second, Tanzania argued that the case was in a wrong forum to the extent that it alleges violation of provisions of international and regional conventions and declarations that were not part of the EAC framework. Beyond the preliminary objections, Tanzania argued that the Road was merely being upgraded (not constructed) and that the contemplated action was within its mandate.[3] Tanzania further argued that in upgrading the Road, it intended to abide by its laws and rules on environmental preservation and conservation as well as its obligations under all relevant international and regional treaties.[4] Finally, Tanzanian asserted its sovereign right to upgrade the Road in order to stimulate the socio-economic growth.[5]

About The EAC and the EACJ

The EAC was established pursuant to Article 2 of the EAC Treaty with the objective of developing policies and programmes aimed at widening and deepening co-operation among the Member States in political, economic, social and cultural fields, research and technology, defence, security and legal and judicial affairs.[6] The Member States of the EAC are the Republic of Uganda (Uganda), the Republic of Kenya (Kenya), the United Republic of Tanzania (Tanzania), the Republic of Burundi (Burundi), and the Republic of Rwanda (Rwanda). The Court is a judicial body established by the Treaty to “ensure the adherence to law in the interpretation and application of and compliance with this Treaty.”[7] Member States of the EAC as well as legal and natural persons can refer cases to the Court.

Judgment of the Court

The Court addressed three important questions. First, does the fact that Member States of the EAC, specifically Tanzania, have not ratified the EAC Protocol on Environment and Natural Resource Management (hereinafter “EAC Environmental Protocol”) – a protocol designed to operationalize the environmental chapter of the EAC Treaty – render unenforceable every article in the said chapter? Second, does the Applicant lack locus standi to institute a reference premised on alleged violations of international and regional conventions and declarations on the environment and natural resources that are clearly outside the EAC framework? Third, does the decision of the Tanzanian Government to build a road across the Serengeti violate relevant provisions of the EAC Treaty?

Question 1: What is the Fate of EAC Treaty Provisions That Are Not Yet Operationalized?

Does the fact that Member States of the EAC are yet to ratify the EAC Protocol on the Environment render unenforceable Articles 111 – 114 of the EAC Treaty that spell out certain obligations for Member States in regards to environmental protection?   The question arose because of the interaction of Article 27(2) of the EAC Treaty and Chapter 19 of the same treaty. Article 27(2) of the EAC Treaty states that: “[t]he Court shall have such other original, appellate, human rights and other jurisdiction as will be determined by the Council at a suitable subsequent date. To this end, the Partner States shall conclude a protocol to operationalise the extended jurisdiction.”[8] Chapter 19 titled “Co-operation in environment and natural resource management” is divided into four articles. All four articles – Article 111 (Environmental Issues and Natural Resources), Article 112 (Management of the Environment), Article 113 (Prevention of Illegal Trade in and Movement of Toxic Chemicals, Substances and Hazardous Wastes) and Article 114 (Management of Natural Resources) – require EAC Member States to cooperate in the protection of the environment and in the management of natural resources. Unfortunately, while Chapter 19 defines several areas of cooperation in the area of environmental protection and natural resource management, there is as yet no mechanism for operationalizing the Chapter; although the Environmental Protocol was adopted, Tanzania has not ratified the said protocol.  Furthermore, although Article 27(2) envisages a broad mandate for the Court, it left it up to the EAC Member States to determine when and how to operationalize this mandate.

To the question whether the fact that Tanzania did not ratify the Environmental Protocol render Chapter 19 of the EAC Treaty unenforceable, the Court answered in the negative. The Court started by citing Article 152 of the EAC Treaty which states that the EAC treaty “shall enter into force upon ratification and deposit of instruments of ratification with the Secretary-General by all Partner States.” To the Court, the important issue is whether Tanzania ratified the EAC Treaty and whether the said Treaty is in force. Having determined that Tanzania indeed ratified the EAC Treaty,[9] the Court concluded that Tanzania was bound by each provision of the Treaty, including those provisions that were yet to be fully operationalized.[10] According to the Court, “whereas it is true that a protocol is expected to be concluded for each area of co-operation including on the environment and natural resources, non-conclusion of a protocol does not oust obligations placed on a Partner State by the Treaty itself.”[11] In short, “failure to enact a protocol does not oust the obligations placed on a Partner State by clear and unambiguous provisions in the body of the Treaty.”[12]

Question Two. Can the Court entertain a reference premised on alleged violations of international conventions and declarations on the environment that are not part of the EAC legal framework?

Does the Applicant lack locus standi to institute a reference premised on alleged violations of international conventions and declarations that are not part of the EAC framework? The Court answered in the negative. The Court noted that the gravamen of the Applicant’s case was not alleged violations of the cited international instruments but infringement of Chapter Nineteen of the EAC Treaty. Nevertheless, the Court concluded that the Applicant had locus standi under Article 30(1) of the Treaty to bring proceedings alleging violations of other international conventions and declarations. The Court cited with approval an earlier decision, Democratic Party vs Secretary General, East African Community and 4 Others,[13] in which it concluded:

[W]here a Partner State “fails to honour commitments” made to other international organizations, with appropriate facts placed before the Court, a decision to ensure compliance thereof may be made in favour of a party … which has a genuine complaint in that regard.[14]

The Court found support for this arguably expansionist interpretation of its mandate in Article 130 of the EAC Treaty which obliges Member States to “honour their commitments in respect of other multinational and international organizations of which they are members.” While it can entertain complaints alleging violation of commitments made to other international organizations, “the only rider is that [the] Court cannot purport to operate outside the framework of the Treaty and usurp the powers of other organs created for the enforcement of obligations created by other instruments.”[15]

Question 3. Does Tanzania’s decision to build a road across the Serengeti violate provisions of the EAC Treaty?

Does Tanzania’s decision to build a road across the Serengeti violate provisions of the EAC Treaty? The Court answered in the positive. According to the Court “there is no doubt that if implemented, the road project as initially conceptualized, would be in violation of the Treaty….”[16] The Court found very persuasive, the fact that the United Nations Education, Scientific and Cultural Organization (UNESCO) had expressed concern about the negative consequences on the environment of the proposed action and had called for a Strategic Environmental and Social Assessment of the project.

The Orders of the Court

Regarding orders, the Court observed that whatever orders it must make “must be preventative and geared towards restraining [Tanzania] from pursuing the bituminized road project and secur[ing] the Serengeti ecosystem.”[17] To the Court, any roads in the Serengeti “should generally be used by wildlife, tourists and Park administrators and not the general public because of the attendant risks associated with such use.”[18] Consequently, the Court declared that the proposed action to construct a road of bitumen standard across the Serengeti National Park was unlawful and ilnfringes several articles of the EAC Treaty. [19] Furthermore, the Court granted a permanent injunction restraining Tanzania from operationalising its initial proposal “subject to its right to undertake such other programmes or initiate policies in the future which would not have a negative impact on the environment and ecosystem in the Serengeti National Park.”[20]

Implications of the Decision

Some would undoubtedly question the Court’s reasoning, the rigor of its analysis, as well as its overall approach to treaty interpretation. Some of the criticisms may not be totally unjustified. Indeed, the EACJ has not been consistent or very diligent in its application of the rules of treaty interpretation set forth in Articles 31 and 32 of the Vienna Convention on the Law of Treaties despite verbal commitment to abide by the said rules.[21] Nevertheless, human rights organizations, environmental groups, and indigenous groups in Africa undoubtedly welcome the EACJ’s decision in the Serengeti Decision.

The Serengeti Decision has wide-ranging implications for EAC Member States, for international as well as regional development banks and institutions, for foreign investors, and for ordinary men, women and children in the EAC region. Several lessons and conclusions may be drawn from this case. First, sub-regional courts in Africa are open for business and are addressing matters that go well beyond the issues of regional integration. Second, sub-regional courts in Africa are arguably helping to address the justice gap in Africa by accepting and ruling on allegations of human rights violations and environmental destruction. The Community Court of Justice of the Economic Community of West African States (ECOWAS)[22] adopted a posture similar to that of the EACJ in SERAP v. Federal Republic of Nigeria.[23] SERAP centered around environmental degradation resulting from the exploration and extraction activities of multinational oil companies operating in the Niger Delta region of Nigeria. In SERAP, the ECOWAS Court of Justice found the Federal Republic of Nigeria in violation of its international obligations under Articles 1 and 24 of the African Charter on Human and Peoples’ Rights because Nigeria failed “to prevent damage to the environment and to make accountable the offenders, who feel free to carry on their harmful activities, with clear expectation of impunity.”[24] Third, when it comes to development projects, many of which are supported and funded by foreign investors and international/regional development banks, it can no longer be business as usual in Africa. Africa’s ecosystem cannot be sacrificed at the altar of infrastructure projects even when they further the overall economic development objectives of a country, the EACJ Court appeared to be saying. Fourth, sub-regional courts in Africa do not have the mandate to rule on the activities of non-state actors. However, the courts are not hesitating to hold states in violation of their human rights obligations when they fail to hold non-state actors accountable for their actions. In SERAP, the ECOWAS Court of Justice noted that “despite all the laws it has adopted and all the agencies it has created, [Nigeria] was not able to point out … a single action that has been taken … to seriously and diligently hold accountable any of the perpetrators of the many acts of environmental degradation which occurred in the Niger Delta Region.”[25] Furthermore, the court added that “the damage caused by the oil industry to a vital resource of such importance to all mankind, such as the environment, cannot be left to the mere discretion of oil companies and possible agreements on compensation they may establish with the people affected by the devastating effects of this polluting industry.”[26]

Conclusion

Increasingly, and with minimal resources, sub-regional courts in Africa are addressing the justice gap in the continent. The sub-regional courts are also increasingly addressing the tension between development and human rights/environmental protection in the continent and, in the process, are shaping understanding about sustainable and responsible investment and development in Africa. How to support these courts so that they can perform their function more efficiently is a question that must be increasingly asked. Given the arguably important function that these courts are now taking on, effort should be made to support them through targeted capacity building so that they can deliver judgments that are comprehensible, coherent, rational, legitimate, and analytically rigorous?

*SJD (Harvard) Professor of Law, University of Arkansas School of Law; Co-Chair, International Investment & Dev. Committee, American Bar Association Section of International Law. The views expressed are those of the author in her personal capacity and do not represent the views of any association or institution that she is affiliated with.

[1] Ref. No. 9 of 2010 (Decision of 20 June 2014).

[2] Treaty For the Establishment of the East African Community (As amended on 14th December, 2006 and 20th August, 2007)(hereinafter “EAC Treaty.”).

[3] The Animal Network for Animal Welfare v. The Attorney General of the United Republic of Tanzania, supra note 1, ¶ 21.

[4] Id., ¶ 21.

[5] Id., ¶ 22.

[6] EAC Treaty, supra note 3, Article 5(1).

[7] Id., Article 23(1).

[8] Emphasis added.

[9]The Animal Network for Animal Welfare v. The Attorney General of the United Republic of Tanzania, supra note 1, at ¶ 36 (“the United Republic of Tanzania ratified the Treaty on 28th June 2000 and deposited her Instruments of Ratification on 30th June 2000.”).

[10] Id., at ¶ 39 (“The United Republic of Tanzania having signed and ratified the Treaty is clearly bound by each provision therein and it is very surprising to hear its Chief Legal Advisor submit to the contrary.”).

[11] Id., at ¶ 40.

[12] Id., at ¶ 42.

[13] EACJ Reference No. 2 of 2012

[14] EAC Treaty, supra note 3, Article 48.

[15]The Animal Network for Animal Welfare v. The Attorney General of the United Republic of Tanzania, supra note 1, ¶ 48.

[16] Id., ¶ 74 (emphasis in the original).

[17] Id., ¶ 78 (emphasis in the original).

[18] Id.

[19] Id., ¶ 86(i).

[20] Id., ¶ 86(ii).

[21] Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, 8 I.L.M. 679, entered into force Jan. 27, 1980.

[22]The Community Court of Justice – ECOWAS, About US, available at: http://www.courtecowas.org/site2012/index.php?option=com_content&view=article&id=2&Itemid=5

[23]ECW/CCJ/JUD/18/12

[24] Id., at ¶ 111.

[25] Id., at ¶ 110.

[26] Id., at ¶ 109.

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